Recently, Arizona Gov. Jan Brewer vetoed SB 1062, a bill that would have legalized discrimination on the basis of religious belief and which was chiefly targeted at LGBTQ people.
To look at the outrage expressed by many conservatives about Gov. Brewer’s veto, one is immediately struck by the vagueness of their declarations; they delicately eschew specifics about what they mean by “religious freedom.” But we have been here before. What conservatives really mean has been revealed already by their longstanding crusade against the birth control benefit afforded by the Affordable Care Act (ACA). For them, having religious freedom requires the right to discriminate—against specific people, and in a specific way.
Three legal initiatives stand out. The (mercifully unsuccessful) bid in California to roll back protections for transgender students via referendum; the SB 1062-style laws being considered in Georgia, Missouri, and other states; and the continuing attack on the contraception mandate.
What unites them all is an attempt to subtly enthrone a specific interpretation of religious freedom that facilitates institutional control of women’s bodies and those of LGBTQ people.
All three appeal to tradition, but the legal gymnastics required for each are strikingly novel in the history of constitutional law. The battle against the ACA’s inclusion of women’s health care, for instance, is necessitating the creation of something new to our democracy: the idea that a corporation is a person with religious liberty, above and beyond that of its owners and employees. More than just a vehicle for a powerful individual’s beliefs, now conservative activists seek to make the corporation a person unto itself with immanent religiosity that is constitutionally protected.
Similarly, the logic employed by those who opposed California’s trans rights bill, by necessity, conceives of trans students as agents of the state, violating the privacy rights of cisgender students—an odd choice that diverged from the ways the concept of “privacy” has been legally employed in the past, as a bulwark against the intervention of the state in the private affairs of citizens.
Just as the shape of structural racism has evolved from Jim Crow to the regime of “color blindness,” there is a new subtlety to the heirs of the movement that criminalized abortion, contraception, homosexuality, and transsexuality in years past. The use of “religious freedom” as a legal shield is not new—it has a long, ugly history intertwined with U.S. racism—but the subtlety in naming the target is.
These legal strategies are indirect—aiming squarely at a group without announcing it, and saturating the PR side of things with generalities, obfuscations, and appeals to abstract ideals (like “freedom of religion”) without specifying what they mean. We see this, too, in the way anti-abortion laws, clearly aimed at cutting off women’s access to a constitutionally guaranteed medical procedure, usually do not seek to explicitly ban the procedure but instead set unreasonable standards for abortion clinics (such as mandating that all physicians have admission privileges at local hospitals, or that clinics must have facilities identical to large hospitals) that ensure clinic closures or cost increases.
In those cases, “women’s health” is the standard around which these legislators rally, averring that these laws are merely designed to ensure the safety of women patients in these clinics, even as they deny women access to health care.
Abstract principles without specifics are the rhetoric du jour of those who seek ever more creative ways of justifying ever more onerous controls on the lives and bodies of women and LGBTQ people.
This brings us back to the issue of “religious freedom” and what it has come to mean in this perverse economy of discourse.
At heart, what unites the contraception fight with SB 1062 and the anti-trans referendum fight in California is that, in the legal constructs of the conservative activists, the bearers of rights are the already privileged, and the right being stipulated is the anti-democratic right to enlist ordinary citizens in the violent policing of others. It invigorates the cissexist parent, the homophobic restaurateur, the misogynist businessman into turning private prejudices into public practice, backed by the full faith and credit of the state. But rather than using, say, the blunt instruments of state power to enforce these laws, it cuts off certain citizens from state recourse and makes of other citizens the judges, juries, and executioners.
These initiatives are designed to crowdsource institutional prejudice.
While it may be difficult to ban contraception outright, it is easier for the political right to enlist, say, pharmacists (via “conscience clauses,” which operate on a similarly vague definition of religious liberty), or business owners to deny contraception to women customers and employees, limiting access in the same indirect way that much anti-abortion legislation does.
Similarly, the anti-LGBTQ laws that have blossomed like a rash on the American legal landscape—putatively about defending religious freedom, and often not explicitly mentioning LGBTQ people in the law’s text—are another example of this pointedly indirect form of legislating, and they present a marked contrast with the attempts of the Bush administration to impose a top-down ban on same-sex marriage via constitutional amendment a decade ago. Now the laws are chiefly aimed at enlisting business owners and other service providers (including those employed by the state) in strengthening a culture of homophobic and transphobic prejudice.
For example, Georgia’s law (put on ice as of February 28), the Preservation of Religious Freedom Act, stipulates that “[a] person’s civil right to exercise of religion shall not be burdened even if the burden results from a rule, law, ordinance, regulation, or policy of general applicability.” What such a bill proposes is an end-run around existing state and federal laws against discrimination or laws that compel equal accommodation.
The negative space thus created is one in which people’s prejudices, so long as they can be justified through appeal to a tenet of one’s faith, are used to police the behavior and lives of others.
This is exactly the intention of a law being proposed in Idaho (temporarily withdrawn as of February 19) which empowers individuals to ignore any local statutes or ordinances in their state that ban anti-LGBT discrimination, such as those currently in force in Boise and Coeur d’Alene.
The proposed Georgia law states further that “[t]he religious liberty interest protected by this chapter is an independent liberty that occupies a preferred position,” outlining one of the guiding ideologies at work here: In the eternal contest between competing liberties in a democracy, a narrow definition of religious freedom—the freedom to discriminate against another person on the basis of religious belief—ought to be removed from public contention, and understood as a “preferred” liberty, impervious to challenge save in the case of a “clear and compelling governmental interest of the highest order.” One need not be a dour skeptic to surmise that the bar for such an “interest” is likely set stratospherically high.
In considering the Hobby Lobby case, now before the Supreme Court, which seeks to establish a form of corporate personhood to be imbued with religious freedom, it is worth remembering that in spite of the isomorphism with the eerily similar Citizens United case (which gave corporations an independent right to free speech), this has not been a battle spearheaded by the business lobby. Indeed, a striking fact about this case is that no Fortune 500 companies have filed friend-of-the-court briefs on Hobby Lobby’s behalf, and the U.S. Chamber of Commerce—normally a reliable friend of the far right before the Supreme Court—has also remained silent.
I suspect this is because if Hobby Lobby were to win its fight against women’s right to contraception coverage, it would open a black hole in corporate law that would create difficulties for most businesses (what happens to limited liability if the owner and corporation are seen as a unity?)—but what it creates is a new, privatized institutional mechanism to promote and maintain a misogynist health-care exclusion, based on puritanism and paternalism about women’s bodies. If you can’t get the government to do it, why not use private enterprise?
That is the driving interest of those who seek to create “religious exemptions” from the Affordable Care Act.
I would also submit another idea for consideration: It is indeed a strong critique of these laws to say that they are so vague that any “sincerely held” religious belief could be used to sire any number of “exemptions.” What if a New Age spiritualist only wanted their employee health plan to cover homeopathic medicine, or a Jehovah’s Witness CEO sought to make employees pay for their own blood transfusions? But I think that what these laws depend on is that an arbitrary social standard—shared by state legislators and some of their constituents—is the informal “test” applied to any given case. Denial of contraception and discrimination against queer couples and trans people is commonly accepted among many in this country as an expression of sincere religiosity. But our hypothetical New Ager or Jehovah’s Witness lacks access to a powerful lobby that will enforce and reify their definition of religious purity.
Discretion is left to those who will enforce these statutes whether a given invocation of religious freedom ought to be “burdened” by state or federal law, which opens a perilously wide door for the collective reinforcement of any subjective prejudice shared by large swathes of the population—such as Rush Limbaugh’s belief that contraception is entirely pegged to a woman’s sex drive, or that transgender students are rapists in waiting, or that Christianity is under attack by LGBT people.
“I’ll know it when I see it” could become a widely enshrined legal standard, and it is likely this which conservatives are banking on to ensure that their laws are not used in ways they would not approve of (say, by Muslim Americans).
These three legal fights—the attack on trans students in California, the battle for the ACA contraception mandate, and the anti-LGBTQ “religious freedom” bills—are links in a chain that connects directly to the recent onslaught of anti-choice legislation in the United States, united in their efforts to create indirect but concrete barriers to the exercise of equal rights and bodily autonomy by women and LGBTQ people.
As of this writing, the tide of these anti-LGBTQ bills seems to be breaking—Jan Brewer vetoed Arizona’s, Georgia’s has been withdrawn, and Mississippi’s is being reworked. In the words of Rachel Maddow, the bills seem to shrivel up in the sunlight of national media attention. This is encouraging, as is the nationwide opposition to these bills that has drawn together a broad coalition. But we should not mistake a temporary retreat for an end to this issue. Even as these bills expire in committee, the threat they represent remains real in the waves of laws that seek to regulate women’s bodies.
After all, the same conservative Christian organization that supported and co-drafted Arizona’s SB 1062—the Center for Arizona Policy—also just helped to pass HB 2284, which allows random government inspections of abortion clinics, and makes it a class 1 misdemeanor to in any way help “a minor avoid Arizona’s parental consent requirements” for getting an abortion. It’s called the “Women’s Health Protection Act.”
Indeed, it can be argued that Republicans tried this spate of anti-LGBTQ bills in the first place because similar legal logic has been employed to such great effect against women’s reproductive rights, and as HB 2284 makes clear, we are most certainly not at the end of that fight.